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Defendant Galan was convicted with the possession and distribution (CA Penal Code 311) of child pornography and now has to pay restitution. He believes that the district court made a mistake when it failed to separate the losses caused to “Cindy” due to the actions of the original abuser and others who merely possessed or distributed images. The question raised here is whether or not it is proper to make restitution calculations without considering actions of the original abuser.

The District Court agreed with the government's restitution calculations, so Galan appealed the case. Judge Fernandez decided that the losses caused by the original abuser of the victim should be taken into consideration and separated out of the restitution calculations. The District Court made a mistake when it declined to limit the restitution imposed on Galan in that manner.

Now, district courts have to consider what factors are going to be used to disaggregate restitution claims. Factors such as, how the victim deals with this abuse when distribution of the images does not follow and the victim's own reaction to the traumas to which he or she has been subjected to will be used to determine the amount. Judge Fernandez states that the restitution scheme “cries out for congressional solution,” but until then the district court and the government must figure out a way to separate the restitution claims and limit the liability of the subsequent simple possessor.

The Ninth Circuit Court of Appeals became the most recent and highest court to declare that Congress should fix the law that determines restitution for child pornography victims.

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About the Author

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 25 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.

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Abolish the Death Penalty

“The death penalty is a lie, a misguided mistake born of anger and frustration. Capital punishment has become a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. The death penalty is a grim, disturbing shadow formed by the legacy of racial apartheid and bias against the poor that condemns the disfavored among us, but corrupts us all. It’s the perverse symbol elected officials use to strengthen their ‘tough on crime’ reputations and distract us from confronting the causes of violence. It is finally the enemy of grace, redemption and all of us who recognize that each person is more than their worse act.”

“The death penalty is a lie, a misguided mistake born of anger and frustration. Capital punishment has become a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. The death penalty is a grim, disturbing shadow formed by the legacy of racial apartheid and bias against the poor that condemns the disfavored among us, but corrupts us all. It’s the perverse symbol elected officials use to strengthen their ‘tough on crime’ reputations and distract us from confronting the causes of violence. It is finally the enemy of grace, redemption and all of us who recognize that each person is more than their worse act.”
- Bryan Stevenson